It has come to my attention that you are maintaining a website (http://home.earthlink.net/~bwcarver/ludwig/wgallery.html)
which shows Photographs of Ludwig Wittgenstein. I would like to remind you
that by publishing these photographs in that way you are in breach of copyright.
The copyright for these photographs lies with the Wittgenstein Archive in
Cambridge and I therefore ask you to either withdraw the website or pay a
publication fee of US$ 55,-- per photograph. In any case, it is illegal to
provide these photographs for the use of others.

Looking more closely at your website I noticed that the photographs have
been scanned probably from Ray Monk's biography of Wittgenstein. This is
of course illegal and I ask you to withdraw the website immediately.

I have removed the photographs you cited. I was unaware the photographs
were copyrighted. I believed the photographs to be taken by friends of Wittgenstein,
long deceased, and that the photographs were now in the public domain. I
also believed that even if they were copyrighted, since I have never charged
for access to the photographs, but instead made them available as an educational
resource, that my use of them would fall under the "fair-use" exceptions
provided under copyright law.
I would be pleased if the Wittgenstein Archives would reconsider their
position on aggressively enforcing this copyright, as I am sure that the
international public would benefit more from these images being widely and
freely available than they will now that I am complying with your request.
I am unable to afford the $1100 you request for publishing the thumbnail
images of the 20 photographs. And since I am not a lawyer and cannot afford
one, I feel my only recourse is to ask you to reconsider. Until then, the
photographs will remain offline. Thank you.

I am afraid that I am unable to reconsider my position. The Wittgenstein
Archive is an educational charity which relies on the revenues it receives
from the distribution of these photographs. One of our projects here is
the publication of the Wittgenstein Nachlass in the 'Vienna Edition' (published
by Springer in Vienna and New York). The production of this edition is very
expensive and we only receive limited funding from public sources for this
project. As somebody who seems to be interested in Wittgenstein I am sure
it is in your interest as well that this project can continue without any
problems.

Even though the pictures are, as you say, 'thumb nail' sketches, it is unacceptable
to scan parts of published works and distribute them on the internet. Also,
you mention on the website that larger versions of these photographs are
available on request. I noticed that contrary to what you told me the picture
gallery is still online. I would be grateful if you took it offline immediately.

Of course, I agree with you that the Wittgenstein photographs should be
available to interested parties. This is precisely one of the aims of the
Wittgenstein Archive in Cambridge. The archive is open to researchers and
others interested in Wittgenstein. However, I am sure you appreciate that
the original photographs and the rest of the collection, which includes
letters and documents related to Wittgenstein, require looking after which
in turn costs money. This money has to be generated somehow. I am not very
familiar with the funding structures in the US, but I can tell you that
in Britain and Europe it is difficult to raise enough funding for educational
purposes. So the options are to sell the archive to a commercial agency
or to keep it in the context of an educational charity (public or private).
Either way, the upkeep of the collection requires financial means. As you
might imagine, selling it to a commercial agency is not in the interest
of the academic community (or others) because the collection would most
likely be used to generate a profit. Keeping it in the context of an educational
charity however requires the goodwill of the wider community interested
in Wittgenstein. This includes respecting copyright. Having to pay for
the photographs might be a short-term disadvantage but it leads to the long-term
advantage that the collection will be preserved for future generations of
researchers and others interested in Wittgenstein's work.

The photographs were already offline yesterday when you requested
again that they be removed and they have also already been removed from the
additional site you mention. I believe the problem may reside in your browser's
cache of the pages. If you click 'refresh' or 'reload' your browser will
retrieve the latest versions of the pages.

I am pleased that we agree that the Wittgenstein photographs should
be available to interested parties and glad to know that this is an aim of
the Archive. It seems we may disagree though about the best means of achieving
this aim.

Imagine if all the photographs were available freely in high quality
digital form on the internet. After the initial expenditure of time scanning
the photos, the cost would be in the bandwidth required to host the images.
Fortunately for the Archive, it would not have to bear this cost alone, as
the internet is filled with pages like mine where others interested in Wittgenstein
would be willing to share that cost with you. Indeed, Google's Image search
returns nearly 4000 pages with images related to "Wittgenstein". It will
be a monumental task to contact all those sites, as you have mine, to ask
that they remove the images. I can imagine that such a crusade could cost
the Archive more than the cost of the "upkeep" of all the photographs for
the next 50 years, and as you mention, funding is precious. Indeed then,
the goodwill of the wider community interested in Wittgenstein that you seek
is already at your disposal, and I fear your current actions serve to cut
yourself off from that goodwill and perhaps even to alienate it. So, I believe
you present a false dilemma when you suggest that the only options are selling
the Archive to a commercial agency or vigorously enforcing the copyright
on these images and charging $55 per photograph for their use. There are
other options available, several of which I believe are more in the Archive's
and more in the public's interest. I would be pleased to explore these with
you. Indeed, if your claims are true, then the Archive already faces a future
funding crisis, for copyright does not last forever, and the Archive should
begin thinking now how it will proceed at that time.

Let me be clear that it is always my intention to respect copyright.
It was my belief before you contacted me, and it may still be my belief,
that many of these images are in the public domain. I am no expert on Copyright
law, but it is my understanding that in the U.S. and in most of Europe copyrights
now last for the life of the author (or photographer in this case) plus 70
years. Many other complicated rules may apply, but this would imply that
any photographs of Wittgenstein taken by a photographer who died before 1932
would now be in the public domain. In particular, the earliest images of
Wittgenstein as an infant, some of which I had posted, would have been taken
in the early 1890s. I would imagine it likely that the photographer responsible
for such photographs could have died prior to 1932. Further, it is not clear
to me if the Archive wishes to assert that they control the copyright on
all 20 of the images I had posted, or on only some subset of those images.
So, I still hope some alternative arrangement would be agreeable to the Archive,
but if your position remains unchanged, I would like to know which of the
below photographs the Archive asserts to hold the copyright on, and for each
of those, the photographer's name, and the photographer's date of death.
It is apparently also relevant whether the photograph was made as a "work
for hire" or whether the photographer transferred his copyright to the Archive.
As you may know, the images in question are:

Ludwig01: The infant Ludwig Wittgenstein.
Ludwig02: Ludwig, c. 1891.
Ludwig03: A family photograph taken on Karl and Leopoldine Wittgenstein's
silver wedding anniversary, 1898, at the family home in Neuwaldeggasse in
Vienna. Ludwig is in the front row on the left.
Ludwig04: Ludwig, aged nine.
Ludwig05: The family at the dinner table in the Hochreit. From left
to right: the housemaid Rosalie Hermann, Hermine Wittgenstein, Grandmother
Kalmus, Paul Wittgenstein, Margarete Wittgenstein, Ludwig.

Ludwig06: Ludwig Wittgenstein, aged about eighteen.
Ludwig07: With William Eccles at the Kite-Flying Station in Glossop.
Ludwig08: Wittgenstein, 1925.
Ludwig09: On being awarded a scholarship from Trinity College, 1929.
Ludwig10: The Fellowship Portrait, 1930.

The other images I had posted were, I belive, taken after 1932, and
though I believe even those may have fell into the public domain through
the complex rules of copyright, I just ask for the information on the photographers
above.

In operating this website over the last seven years I have been contacted
by people from all over the world who are interested in Wittgenstein. They
write from Ecuador, from Spain, from Canada and beyond. I would guess that
most of these people, like myself, can afford neither a trip to Cambridge
nor $55 per photograph. I hope that the Wittgenstein Archive would consider
its role as an educational charity and its aim of making these photographs
available to an interested public and see the alternatives that exist that
could allow both the Archive's and the public's interest in Wittgenstein
to flourish for many years to come. In particular, the upkeep costs that
you mention can, I belive, be mitigated, while at the same time better furthering
the Archive's educational mission. Perhaps we will disagree on this, but
if so, I feel the loss will not particularly be mine or yours, but rather
the world's.

Thank you very much for complying with my request. Let me try to reply briefly
to your points.

1) All of the Wittgenstein photographs in the Archive exist already in digital
form. They can be accessed as thumb nail images via our website (http://www.wittgen-cam.ac.uk).
You will be able to find the information you asked me for regarding the photographs
you mentioned there. Unfortunately, we cannot distribute these photographs
free of charge for the reasons already mentioned. The main point is, as
any archivist or librarian will be able to confirm, that the digitisation
of archivable material is not yet a substitute for archiving the originals
because there are still major problems with the lifespan of electronic media.
Also, I hope you are not seriously suggesting that we let the original photographs,
documents, etc. deteriorate or throw them away because they exist in electronic
form.
I also fear that you underestimate the work involved in the archiving and
digitisation of such material. In the case of 20 photographs (as you presented)
this is a relatively simple task, involving fairly little time. However,
the archive has thousands of photographs which needed to be scanned, catalogued
and adequately archived. This is a huge and expensive (ongoing) task (as,
again, any archivist or librarian will be able to confirm) which requires
the work of professionals. I think that most people, especially in the academic
community, are aware of this.

2) As for the copyright issue, I'd like to make two points:

a) The issue is not simply about the copyright of the original photographs
but about the reproductions of these photographs which the Wittgenstein Archive
has made. These reproductions are copyrighted regardless of whether the
photographer of the original photograph or the person who commissioned the
original photograph has been dead for more than 70 years. All of the images
that you used on your websites and most images relating to Wittgenstein that
are around on the web are reproductions of reproductions that were made
by the Wittgenstein Archive (in fact in most cases it is more likely that
the images are reproductions of reproductions of reproductions etc...). For
this reason the Wittgenstein Archive holds the copyright to all of the images
that were on your websites.
In order to illustrate this, here is an example: the Louvre does not own
the copyright of the original 'Mona Lisa' because Leonardo da Vinci has been
dead for more than 70 years. However, it owns the copyright to all the reproductions
of the 'Mona Lisa' that it and others have made. Now, in order to generate
some income, the people at the Louvre won't let you make reproductions of
the 'Mona Lisa' (at least not in a professional way and not without a fee).
Instead, they will provide you with one of their reproductions and charge
you a copyright fee. This means that collections (e.g. museums and archives)
do not have to worry abou the '70 year rule' because that only applies to
the original image. The copyright in question, however, is the copyright
of the reproduction.

b) With regard to your particular websites, you say that it has always been
your intention to respect copyright. However, the photographs on your websites
bear an uncanny resemblance to the photographs in Ray Monk's book (the captions
are exactly the same and, more importantly, the page breaks of the book are
clearly visible in some of the photographs). If indeed you did take the
photographs from the book then this is clearly a copyright infringement
which is independent of the issue of 2a above (however, points 2a and b are
linked because of the fact that the images in Ray Monk's book are reproductions
of reproductions that were made by the Wittgenstein Archive).

3) I appreciate that your website is a very useful research tool and I am
sure that many people from all over the world make use of it. The Wittgenstein
Archive is the last place that would like to deprive researchers and other
interested parties of this tool. However, I wish that those people who have
an interest in these photographs would approach us at the archive. If, as
you say, there are people who cannot afford to pay, then I am sure my colleagues
and I will be able to come to some form of agreement with them. I am of course
aware that there are many Wittgenstein pictures around on the web in breach
of copyright regulations, but my main objection to your websites was that,
instead of simply using a few pictures in order to adorn your websites,
you offered a picture gallery for others in breach of copyright regulations.

1) I was able to find much of the information I requested on the Archive's
site. Many of the photos are listed as having an "Anonymous" author. Many
of the dates on the site differ from Monk's by a year or two. The photographers
who were listed were:

After some brief internet searching, the only one of these photographers that
I was able to learn anything about was Moritz Nahr who apparently also took
some photos of Gustav Klimt, among others. For none of the above was I able
to learn their date of death (or in the case of "Tropical Pictures" what
that even refers to). Do you have any further information about these photographers?

I did not wish to suggest that digitization of the photographs could be
a substitute for archiving the originals, nor would I suggest that the originals
should be allowed to deteriorate or be thrown away. I'm not sure what I said
that suggested this to you. Rather, I believe that the free distribution
of digital copies of the photographs can be accomplished while simultaneously
maintaining the Archive's collection of originals. But, I would agree with
you that I probably do underestimate the work (and cost) involved in such
archiving, as I am not an archivist. Despite this, it seems to me there remain
numerous alternatives to the Archive's present position as regards use of
these photographs that could allow the Archive to better further its educational
mission while simultaneously continuing its work. For instance, I believe
if scholars knew that the Archive felt threatened enough that it needed
to pursue the removal of all non-sanctioned Wittgenstein photo galleries
on the internet that many might be willing to make outright donations to
the Archive. (I'd be glad to even set up a link to do so.) I hope it is
clear that I count myself among the many who value the Archive's work greatly
and would be saddened to see it cease. (I have several other ideas for Archive
fundraising that are not really relevant here. Surely the Archive can think
of them as well.)

2a) Nevertheless, I'm afraid your first point about Copyrights is simply wrong.
First, because of the relevant law and decisions that have been rendered
on such issues, and secondly, because the view of Copyright you explain is
self-defeating. Without being a lawyer, one can learn that a mechanical reproduction
of a copyrighted work is typically not itself eligible for a copyright under
either US or UK law. Both require originality to confer copyright. In particular,
Bridgeman Art Library v. Corel Corp, 36 F. Supp. 2d 191 (S.D.N.Y. 1999)
dealt with this issue, (discussing a case much like the one you mention
concerning a photograph of the Mona Lisa) and the court emphatically stated
that such "slavish copying" did not constitute originality sufficient to
warrant copyright. Andy Warhol, for example, may be able to make copies
of prior works that introduce sufficient originality into the process to
warrant copyright, but simply digitally scanning a photograph does not.
It is my understanding that the Wittgenstein Archive seeks to make faithful
reproductions of the originals it stores, and does not typically see itself
as engaging in the creation of original art. If I were wrong about that,
then it would not be clear to me that the Archive was doing the work of
an archive. The Louvre may indeed have the practices that you describe, but
this does not mean that the law guarantees them the right to such practices.
They may be able to get away with it simply because they are capable of limiting
our physical access to the Mona Lisa. Indeed, the Louvre may even threaten
to sue you if you host a digital reproduction they made, but this does not
mean that they would win in court. Indeed, the law in the US and UK fairly
clearly shows that they would lose.

Secondly, the view of copyright you explain is self-defeating because it implies
that the copyright holder can never bring an action against a copier, because
each copier is creating his own original that is itself subject to copyright.
This is absurd. If copying a copyrighted work allowed one to then claim
a new copyright on the copy, then the person running the printing press
at a publishing house should argue for much higher pay! Every copy they
print is their own new work. Indeed, it would also imply in the present situation
that if I copy the images of Wittgenstein from Monk's biography, then I
may assert copyright on those copies. But clearly I cannot, and neither can
the Wittgenstein Archive simply because you possess the originals. This can
be seen since it wouldn't help me to get my hands on the originals to the
latest Stephen King novel in an attempt to make copies that would then be
covered by a new copyright in my name.

2b) You also claim that if I copy the photographs from Monk's book, then this
is "clearly a copyright infringement." This is also false. Monk does not
get his own copyright on these images merely by publishing them because of
the same reasons above in 2a. His copyright extends only to the original
material in his book. He might be able to assert a copyright on his captions
to the photos, though their purely descriptive nature and the doctrine of
"fair-use" would count against that, but that would be something for Professor
Monk to take up with me himself. If he did so, I'd be glad to write my own
captions to the photos. US law says, "17 USC 103(b): The copyright in a compilation
or derivative work extends only to the material contributed by the author
of such work, as distinguished from the preexisting material employed in
the work, and does not imply any exclusive right in the preexisting material.
The copyright in such work is independent of, and does not affect or enlarge
the scope, duration, ownership, or subsistence of, any copyright protection
in the preexisting material." The law also does not allow Monk to take material
from the public domain, republish copies and then assert a new copyright.
If this were possible, the public domain would be empty (as our current
laws do their best to ensure anyway). I mention this because I still believe
that the vast majority (if not all) of the photographs that exist of Wittgenstein
are no longer subject to copyright protection at all.

3) I am pleased to hear you say that if there are people interested in these
photos "who cannot afford to pay, then I am sure my colleagues and I will
be able to come to some form of agreement with them." It sounds like my first
suggestion of making all the photos available freely to anyone who asks
is not to the Archive's liking, though I still believe the Archive could
and should explore alternative methods of funding that would allow such
a policy. But moving on, one other suggestion I would have on this front
might be for the Archive to adopt a general licensing policy that favors
non-commercial uses. For instance, the Archive might say to website operators
like myself, a free school newspaper, or a philosophy student that they
may freely publish any of the Archive's images for non-commercial purposes.
If the New York Times or Oxford University Press wants to use an image,
you might continue to charge them a fee. (Although, as I've said, I doubt
you actually have a copyright basis for such charges.) Companies like the
Times and OUP are likely to prefer paying you a little than paying a lawyer
a lot to get a professional opinion on whether they need to pay you in the
first place. I used to get semi-regular requests for information about the
photos, and if I knew the Archive was operating under such a policy, I would
be pleased to pass that information along to interested parties, or to
simply post the policy on my site and include a link.

I am also interested to learn that your main objection to my site was that
"instead of simply using a few pictures in order to adorn your websites,
you offered a picture gallery." While I continue to emphasize that I remain
unconvinced that the Archive is in a position to object on a copyright basis,
I wonder now what exactly the Archive would have no objection to. If several
images (nine?) of Wittgenstein of similar size to those previously posted
were scattered throughout the site, but not gathered together in a gallery,
would the Archive object? If a single image of much larger size were posted,
would the Archive object?

I too am sorry for the length of my messages, and I appreciate your thoughtful
responses. I hope you can find time to respond to this set of questions as
well. I am particularly interested in what information the Archive has on
the photographers mentioned above. It seems that Moritz Nahr, at least, must
have been something of a family friend. Do we know any more about him?
Thanks again for your time.

I am afraid that on the copyright issue our legal advisors seem to disagree
with yours, so there is probably nothing more I can say that would convince
you, or vice versa. However, I don't understand your point that the idea
that reproductions can be copyrighted is self-defeating. The point is, of
course, that only reproductions that were done with the permission of the
person or institution holding the copyright of the original could itself
be copyrighted. That is why there is no disagreement between the holder
of the copyright of the original and the holder of the copyright of the
reproduction. The reason why your reproduction of the Stephen King novel
cannot be copyrighted is because you don't have the right to copy it. However,
in a possible world, Stephen King might ask you to edit his novel. In that
case you could have the copyright to your edition of his novel. A more credible
example is perhaps the 'Vienna Edition' of Wittgenstein's Nachlass that
we edit here. Of course, we don't have the copyright to Wittgenstein's writings.
That lies with the trustees of the Wittgenstein Nachlass. However, we, or
rather the publishing house, have the copyright to our edition of the Nachlass.
Even in 2021, i.e. 70 years after Wittgenstein's death, we will have the
copyright to this edition even though Wittgenstein's writings are not copyrighted
any longer. This means that in 2021 you can publish Wittgenstein's writings
on the internet, but you won't be allowed to scan pages of the Vienna Edition
and publish them on the internet.

With regard to the funding issue, I am afraid that it is not a matter of
"either or". The fact that we charge for the publication of the photographs
does not mean that we don't require other sources of funding as well. We
are of course exploring all means of generating funding. Providing the photographs
free of charge would simply mean a reduction in our available funds and
it is not clear to me that it would be offset by donations from the interested
public.

We have been trying to adopt a de facto licensing policy that would favour
non-commercial purposes. The reason why we are hesitant to commit ourselves
to it explicitly is bad past experience. Sometimes it can be very difficult
to distinguish between commercial and non-commercial uses. Therefore, it
is easier for us to have a general policy of charging for the use of photographs
with the option of waiving the copyright fee in individual cases.

I have some information about Moritz Naehr but need some more time to find
the relevant information about the other photographers (although, 'Tropical
Pictures' used to be a photo studio in Cambridge, I believe):
Naehr was born on 4th August 1859 and died on 29th June 1945. He was a
photographer who worked closely with members of the art movement 'Vienna
Secession', which was of course generously supported by Ludwig's father,
Karl Wittgenstein. In particular, Naehr took many photographs of art works
by artists of the Vienna Secession for catalogues. Naehr was a family friend
and the family owns several photoalbums with family portraits taken by him.

Finally, In order to resolve this whole issue I suggest the following:
You put the photographs that were on your main Wittgenstein website back
up (including the one on your personal website) and in return you provide
a proper link from your website to ours. However, you don't put the picture
gallery back up and in particular you don't provide pictures to others.